Disney Enterprises, Inc. et al v. Hotfile Corp. et al
Filing
320
NOTICE by Hotfile Corp. re 318 MOTION for Partial Summary Judgment PUBLICLY FILED VERSION (Attachments: # 1 Exhibit A, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Errata, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit)(Munn, Janet)
EXHIBIT 11
Message
Page 1 of 4
Gupta, Deepak (22) x4419
From:
RThompson@fbm.com
Sent:
Thursday, May 05, 2011 4:57 PM
To:
DPozza@jenner.com
Subject: RE: Disney v. Hotfile
Duane, unless I'm missing something, it appears that you have provided this
information in Schedule A to your interrogatory responses. I know you and
Tony have been discussing confidentiality, so I want to be sure that I can forward
Schedule A to Hotfile. Please confirm.
.
-----Original Message----From: Pozza, Duane [mailto:DPozza@jenner.com]
Sent: Thursday, May 05, 2011 3:55 PM
To: Thompson, Rod (27) x4445
Subject: RE: Disney v. Hotfile
Rod, on point #2, I understand that you are taking some position that the list of files is relevant to
defendants’ discovery responses. However, you’ve still not identified what the basis of that
position is, much less identified the request for which you think it matters. As I noted below, that
information is not relevant to defendants’ responses. Defendants have no basis for delaying their
production based on an alleged need for this information, nor must they “necessarily” do so.
‐Duane
From: RThompson@fbm.com [mailto:RThompson@fbm.com]
Sent: Friday, April 29, 2011 7:49 AM
To: Pozza, Duane
Subject: RE: Disney v. Hotfile
Duane, I suspected that there was a typo.
1. We see no reason to agree to a start date for discovery as that will
necessarily depend on the category of information sought.
2. We disagree with your statement (as amended) that a list of the each of the
specific files (or links to those files) accused of infringing the 150 works
identified in the complaint is not needed to respond to discovery. If
Plaintiffs choose to withhold that list (which they obviously prepared before
filing suit) until they produce it in discovery, it will necessarily delay defendants
collection and review of documents. Yes, it is your call whether to provide it
early and informally, but it will have an affect on our response to your discovery
requests.
Rod
-----Original Message-----
7/22/2011
Message
Page 2 of 4
From: Pozza, Duane [mailto:DPozza@jenner.com]
Sent: Wednesday, April 27, 2011 8:02 PM
To: Thompson, Rod (27) x4445
Subject: RE: Disney v. Hotfile
Rod, there’s a typo in one sentence in my email below. I’ve fixed it here:
However, even if it was appropriate to provide that information outside the context of discovery,
defendants do not need that information to provide a complete response to our documents
requests, and your email does not explain how it would even be used in the review process.
‐Duane
From: Pozza, Duane
Sent: Wednesday, April 27, 2011 12:41 AM
To: RThompson@fbm.com; Fabrizio, Steven B
Cc: jmunn@rascoklock.com; ALeibnitz@fbm.com
Subject: RE: Disney v. Hotfile
Rod,
I am following up on our discussion Friday about proposed date limitations for the parties to use in
responding to document requests, which is addressed in your third point below. I do not mean to
re‐hash this discussion, but I do want to be clear on our position given the brief statement in the
email below suggesting that the plaintiffs would not agree to a 1/1/08 start date for document
responses. I noted on the call that the plaintiffs cannot agree to a global 1/1/2009 start date for all
requests, but I did suggest 1/1/2008 as a start date for both parties. Defendants would not agree
to that. And given that the parties have not been able to agree on a start date for responding to all
requests (whether or not that this is the same for both parties), we are left discussing this category
by category, but I don’t necessarily agree that that approach makes “more sense” in the abstract.
On a related note, in your email to me last night you requested that plaintiffs provide information
about certain Hotfile links they have identified, outside the discovery process, in order to
“facilitate” your client’s review of responsive documents. However, even if it was appropriate to
provide that information outside the context of discovery, defendants do need that information to
provide a complete response to our documents requests, and your email does not explain how it
would even be used in the review process. Your request in fact suggests that defendants intend to
unreasonably limit the scope of their responses to at least some of our document requests. To the
extent you are seeking to narrow defendants’ response to our requests, we should separately
discuss your basis for doing so.
‐Duane
Duane Pozza
Jenner & Block LLP
1099 New York Avenue, N.W.
Suite 900
Washington, DC 20001-4412
7/22/2011
Message
Page 3 of 4
Tel (202) 639-6027
Fax (202) 661-4962
DPozza@jenner.com
www.jenner.com
CONFIDENTIALITY WARNING: This email may contain privileged or confidential information and is for the sole use of the intended
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From: RThompson@fbm.com [mailto:RThompson@fbm.com]
Sent: Friday, April 22, 2011 8:05 PM
To: Pozza, Duane; Fabrizio, Steven B
Cc: jmunn@rascoklock.com; ALeibnitz@fbm.com
Subject: Disney v. Hotfile
Duane,
This follows up our conversation earlier today on several topics.
First, you asked on behalf of the Plaintiffs for another extension of time to
exchange the initial Rule 26 disclosures. Defendants have previously agreed to a
10-day extension up until next Monday, April 25, 2011 on condition that the 10day delay would not be used as a ground for Plaintiffs to oppose a possible
motion to transfer to California. Frankly, we were strongly inclined to refuse this
courtesy as the Plaintiffs refused a similar request last week to extend the time for
Lemuria to respond to the subpoena served on it. Nevertheless, in view of your
representation of inconvenience caused by need to coordinate with your clients
over the holiday weekend, and hoping to establish a climate for future reciprocal
courtesy, Defendants agree to a further one-week extension until Monday, May 2,
2011 for the exchange of initial Rule 26 disclosures with the same caveat that the
additional seven-day delay will not be used as a ground to oppose a transfer
motion. Enjoy the weekend.
Second, with respect to the Rule 30(b)(6) of Warner Bros., you indicated that
Steve Fabrizio would be in the position to discuss scheduling a date certain with
me upon his return to the office next week. My last email to Steve of subject (of
April 13) is attached for reference. As requested therein, we would like to
proceed with a deposition on topics 1 through 5, 10 and 13 of the deposition
notice. With respect to our related request that Warner Bros. give priority to the
document production related to those same categories--1 through 5, 10 and 13 of
the deposition notice--you suggested that it was possible but the agreement
should be reciprocal. That is, Warner Bros. would agree to give priority to
producing documents responsive to those subject on condition that Hotfile would
do the same. In this way we would have documents from both parties in time for
use at the deposition. Subject to confirmation with my clients, I believe your
7/22/2011
Message
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proposal should be acceptable and I look forward to working out a schedule with
Steve for both the production of documents and the deposition of Warner Bros.
Third, Plaintiffs cannot agree to 1/1/08 as the
presumptive start date for document discovery. We agreed that it made more
sense to look at the requests, category by category, to evaluate a reasonable
starting date.
<>
Roderick M. Thompson
Attorney at Law
______________________________
Farella Braun + Martel LLP
RUSS BUILDING
235 MONTGOMERY STREET
SAN FRANCISCO / CA 94104
______________________________
T 415.954.4400
D 415.954.4445
F 415.954.4480
www.fbm.com
7/22/2011
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